19-003020PL Department Of Health, Board Of Medicine vs. Fred Joseph Turner, Jr., M.D. Status: Closed Recommended Order on Wednesday, August 28, 2019.

Summary: Respondent was convicted of crimes related to the practice of medicine, and did not report his conviction to the Board of Medicine. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 19 - 3020PL

FRED JOSEPH TURNER, JR., M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Jul y 16, 2019, Administrative Law Judge Lisa Shearer

Nelson conducted a duly - noticed hearing pursuant to section

120.57(1), Florida Statutes (2019), in Tallahassee, Florida.

APPEARANCES

For Petitioner: William Edward Walker, Esquire

Major Ryan Thompson , Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Fred Joseph Turner, Jr. M.D., pro se

#62779 - 018

Federal Prison Camp

110 Raby Avenue

Pensacola, Florida 32509

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent, Fred

Joseph Turner, M.D., violated section 456.072(1)(c) and (x),

Florida Statutes (2017), as alleged in the Administrative

Complaint, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 23, 2018, Petitioner, Department of Health, Board

of Medicine (Petitioner or DOH), filed a two - count

Administrative Complaint against Respondent, alleging that he

violated section 456.072(1)(c) and (x), by virtue of his

conviction of a crime related to the practice or the ability to

practice medicine, and his failure to report the conviction to

the Board of Medicine within 30 days of the conviction. On

December 3, 2018, Respondent notified DOH that he disputed the

allegations in the Administrative Complaint and wanted a

hearing. On June 5, 2019, the Department referred the case to

the Division of Administrative Hearings for assignment of an

administrative law judge.

The case was scheduled for hearin g on July 26, 2019, and

proceeded as scheduled. Because of his incarceration,

arrangements were made for Respondent to participate by

telephone.

Petitioner filed a Motion for Official Recognition, which

was granted. It also filed a Motion to Deem Petit ionerÓs

Requests for Admissions as Admitted and to Relinquish

Jurisdiction, which was denied. Petitioner presented the

testimony of Kevin Chaitoff, M.D. ; and Claudia Kemp, Executive

Director of the Board of Medicine, and PetitionerÓs Exhibits

numbered 1 t hrough 4 were admitted into evidence without

objection. Respondent presented no witnesses or exhibits.

The one - volume Transcript of the proceedings was filed with

the Division on August 7, 2019 . Petitioner timely filed a

Proposed Recommended Order that h as been considered in the

preparation of this Recommended Order. Respondent did not

choose to file a proposed recommended order.

All references to Florida Statutes are to the 2017

codification, unless otherwise specified.

FINDING S OF FACT

1. The Departme nt of Health is the state agency charged

with the licensing and regulation of medical doctors pursuant to

section 20.43 and chapters 456 and 458, Florida Statutes.

2. Respondent is a medical doctor licensed by DOH since

April 29, 1991. He holds license n umber ME59799.

3. On or about July 21, 2015, the Grand Jury for the

United States District Court, Middle District of Florida, issued

an indictment against Respondent and Rosetta Valerie Cannata in

case number 8:15 - cr - 264 - T - 23AAS, charging violations of Ti tle 8,

United States Code sections 1324(a)(1)(A)(v)(l) and

1324(a)(1)(B)(i), and Title 21 United States Code sections

841(a)(1), 841(b)(1)(C), and 846. The indictment also sought

forfeiture of various items of value should Respondent be

convicted.

4. A t some point, there was a superseding indictment, but

that indictment is not of record in this proceeding.

5. The case was tried by jury, and although it is unclear

when the jury trial took place, an Order of Forfeiture entered

October 13, 2017, states th at a jury found Respondent guilty of

six counts in the superseding indictment, and that the Unite d

States had established that Respondent had obtained $232,020.02

from the offenses for which he was convicted.

6. The Judgment in Case Number 8:15 - cr - 264 - T - 2 3AAS was

entered December 6, 2017. The Judgment indicates that a jury

found Respondent guilty of counts one through six of the

superseding indictment, as follows: Count I for conspiracy to

distribute and dispense and cause the distribution and

dispensing of oxycodone, hydromorphone, morphine, and

hydrocodone, in violation of 21 U.S.C. sections 846 and

841(b)(1)(C); Counts II through V for distributing and

dispensing and causing the distribution of hydrocodone (Count

II), oxycodone (Count III), morphine (C ount IV), and oxycodone

and hydromorphone (Count V), in violation of 21 U.S.C. sections

841(a)(1) and 841(b)(1)(C); and Count VI for conspiracy to

smuggle an alien into the U nited States, in violation of Title 8

U.S.C. section 1324(a). Count VI is irrelev ant to the charges

in this case.

7. The Judgment sentenced Respondent to 151 months in

federal prison, followed by 36 months of supervised release. It

also provided that Respondent forfeited the items named in the

preliminary Orders of F orfeiture, i.e., property up to

$232,020.02.

8. Respondent did not notify DOH or the Board of Medicine

of his conviction.

9. Controlled substances can only be prescribed by

specified licensed health care providers, such as medical

doctors, who hold a current drug enfo rcement agency (DEA)

registration. Without a medical license and a DEA registration,

a person cannot dispense or prescribe controlled substances, and

therefore, could not commit the crimes for which Respondent was

found guilty.

10. Respondent responded a t length to the charges in the

Administrative Complaint. He vigorously disputes the basis for

the conviction, but not the conviction itself. Respondent

claims that the evidence against him is based upon alteration of

records and test results by a DEA inf ormant who worked in his

office. However, from his statements, it is clear that the

conviction was based upon activity occurring in his practice.

11. The convictions for which Respondent has been

convicted relate to the practice of medicine or the abilit y to

practice medicine.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1).

13. The Department seeks to revoke Responden tÓs license to

practice medicine in this case. Therefore, the Department must

prove the allegations in the Administrative Complaint by clear

and convincing evidence. Dep't of Banking & Fin. v. Osborne

Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

595 So. 2d 292 (Fla. 1987). As stated by the Supreme Court of

Florida,

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the

testimon y must be precise and lacking in

confusion as to the facts at issue. The

evidence must be of such a weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be es tablished.

In re Henson , 913 So . 2d 579, 590 (Fla. 2005) (quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This

burden of proof may be met where the evidence is in conflict;

however, Ðit seems to preclude evidence that is ambiguous.Ñ

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988

(Fla. 1st DCA 1991).

14. The Administrative Complaint charges Respondent with

violating section 456.072(1)(c). Section 456.072 provides in

pertinent part:

456.072 Grounds for discipline; pe nalties;

enforcement. --

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(c) Being convicted or found guilty of, or

entering a plea of guilty or nolo contendere

to, rega rdless of adjudication, a crime in

any jurisdiction which related to the

practice of, or the ability to practice, a

licensee's profession.

15. Whether or not a particular crime is related to a

profession is not limited to its connection to the technical

ability to practice a profession. As stated by the First

District:

Several cases demonstrate that, although the

statutory definition of a particular

profession does not specifically refer to

acts involved in the crime committed, the

crime may nevertheles s relate to the

profession. In Greenwald v. Department of

Professional Regulation , the court affirmed

the revocation of a medical doctor's license

after the doctor was convicted of

solicitation to commit first - degree murder.

501 So. 2d 740 (Fla. 3d DCA 1 987). The

Fifth District Court of Appeal has held that

although an accountantÓs fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of the accountantÓs license for being

convicted of a crime that directly relates

to the practice of public accounting. Ashe

v. DepÓt of ProfÓl Regulation, Bd. of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985). We held in Rush v. Department of

Professional Regulation, Board of Podiatry ,

tha t a conviction for conspiracy to import

marijuana is directly related to the

practice or ability to practice podiatry.

448 So. 2d 26 (Fla. 1st DCA 1984). These

cases demonstrate, in our view, that

appellee did not err by concluding Doll's

conviction was Ðrelated toÑ the practice of

chiropractic medicine or the ability to

practice chiropractic medicine.

Doll v. Dep't of Health , 969 So. 2d 1103, 1006 (Fla. 1st DCA

2007).

16. Here, the connection between the crime for which

Respondent was convicted and the practice of medicine is direct.

Petitioner has proven by clear and convincing evidence that

Respondent violated section 456.072(1)(c). Moreover, the basis

for discipline is the conviction itself, and the Board need not

wait until the completion of the a ppellate process in the

criminal proceeding. Kale v. DepÓt of Health , 175 So. 3d 815

(Fla. 1st DCA 2015); Rife v. DepÓt of ProfÓl Reg. , 638 So. 2d

542, 542 (Fla. 2d DCA 1994).

17. Count II of the Administrative Complaint charges

Respondent with violating section 456.072(1)(x), which provides

in pertinent part:

failing to report to the board, or the

department if there is no board, in writing

within 30 days after the licensee has been

convicted or found guilty of, or entered a

plea of nolo contendere to, regardless of

adjudication, a crime in any jurisdiction.

18. Petitioner established by clear and convincing evidence

that Respondent did not notify the Board in writing of his

conviction, as contemplated by section 456.072(1)(x).

19. The Board ha s established disciplinary guidelines as

required by section 456.079, in order to provide notice to the

public of the range of penalties that can be expected for

violations of chapters 456, 458, and the rules of the Board of

Medicine. For a violation of s ection 456.072(1)(c), the penalty

range for a first offense ranges from probation to revocation or

denial of the license, and an administrative fine from $1,000 to

$10,000. For a violation of section 456.072(1)(x), the range of

penalties for a first offen se are an administrative fine from

$2,000 to $5,000 and a reprimand or denial of license. Fla.

Admin. Code R. 64B8 - 8.001(2)(c),(g)(4).

20. The Department has recommended revocation of

RespondentÓs license to practice medicine, but no fine. Given

Resp ondentÓs current incarceration and the Order of Forfeiture

already entered in the criminal proceedings, imposition of a fine

in this case would serve little or no purpose.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Board of Medicine enter

a final order finding that Respondent violated section

456.072(1)(c) and ( x), and revoking his license to practice

medicine.

DONE AND ENTERED this 28th day of August , 2019 , in

Tallahassee, Leon Count y, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah. state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of August , 2019 .

COPIES FURNISHED:

Fred Joseph Turner, Jr. M.D.

#62779 - 018

Federal Prison Camp

110 Raby Avenue

Pensacola, Florida 32509

William Edward Wal ker, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Major Ryan Thompson, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Claudia Kemp, JD, Executive Dir ector

Board of Medicine

Department of Health

Bin C - 03

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Louise Wilhite - St Laurent , General Counsel

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in thi s case.